2002 Environmental Protection? 1 Protection of the Environment in Roman Law? Andreas Wacke (Cologne)* I. INTRODUCTION 1. Today, we are increasingly sensitive to problems of the environment. We know that our resources are limited and that we have to be particularly sparing in the use of energy. Water threatens to become scarce in some parts of the world. The fear that wars may break out among peoples over water is not unrealistic. Already today, at least a billion people are living without clean drinking water.1 Therefore the protection of the * Dr. iur., Dr. iur.h.c. (Szeged), LL.D. h.c. (University of South Africa, Pretoria), Professor of Roman Law, Civil Law and Civil Procedure, Director of the Institut für Römisches Recht der Universität zu Köln, D–50923 Köln, Albertus–Magnus–Platz, E–mail: Andreas.Wacke@Uni–Koeln.de. This paper was intended to be read at the Roman Law Conference organized by Michael Hoeflich in Kansas, August 2000, where I unfortunately was unable to attend. From Europe I send my best wishes to the new founded Roman Law Society, hoping that its new journal will flourish. – The paper is a summary of my broader German article: “Umweltschutz im römischen Recht?" to appear in the review Orbis Iuris Romani [OIR], edited by Peter Blaho and others (Brno/Trnava) vol. 7 (2001). I am grateful to my law–student Anne– Marie Löwe (Köln/Karlsruhe and London) for her important help in translating the main parts of my German text into English. General Literature: Andrea Di Porto, La tutela della “salubritas” fra editto e giurisprudenza I (Milano 1989), originally published as: Bullettino dell’Istituto di Diritto Romano (3rd ser. 30/31, 1988/89), more or less critically reviewed by Alberto Burdese, “Tutela privatistica dell’ambiente e diritto romano,” Rivista di Diritto Civile 35 II (Padova 1989) 505–511; Bertold Kupisch, Iura: Rivista Internazionale di Diritto Romano 41 (“1990,” actually 1993) 138–139; Hans Wieling, Gnomon: Kritische Zeitschrift für die gesamte klassische Altertumswissenschaft 64 (München 1992) 645–646; Francesco Musumeci, “Tutela dell’ambiente e diritto romano,” Index: Quaderni camerti di studi romanistici 20 (Napoli 1992) 564–574 (including an especially detailed exegesis). Renate Fischer, Umweltschützende Bestimmungen im römischen Recht (Aachen 1996, Shaker Verlag, originally Diss. iur. Augsburg, directed by Wilhelm Simshäuser), reviewed by Francesca Lamberti, “Principio responsabilità a Roma?,” Labeo 45 (Napoli 1999) 2 Roman Legal Tradition Vol. 1 environment is of great importance, including the use of law as a means thereto. Environmental law is the main instrument for realising environmental politics; the overall term includes all law whose objective is the protection of natural resources and which aims to prevent harmful influences on the environment. Land, air and water belong to the natural prerequisites of life. According to the leading anthropocentric theory these environmental elements must be protected in the interest of life, health, and the well–being of mankind. On the other hand, it is not possible to protect ecosystems by law purely for their own sake, as is attempted by the opposing ecocentric theory. Our whole legal system is anthropocentric; omne ius hominis causa constitutum est. To assign legal rights to nature itself would in the end mean giving nature the ability to be a carrier of legal rights. However, the summa divisio that exists between a carrier of rights and the object of rights cannot be overcome. Australia’s animal rights protectors recently succeeded in pushing through the equalization of great apes (such as chimpanzees, gorillas, and orang–utans). Under the state’s constitution, these are now equal with human beings. This achievement, celebrated as a great success by the Green Party, is an illusion, however, as the anthropoids are unable to comprehend the human rights that officially have been assigned to them. Although they are biologically related to humans, legally the two are miles apart. The regulation of § 90a,2 that was introduced into our BGB ten years ago, is a similar curiosity.3 Thereafter, animals are to 128–131 (containing further bibliography on environmental conditions in Antiquity). — Independent of my present research, Rena van den Bergh considers related problems in her article “Roman origins of environmental law?" TSAR, Tydskrif vir die Suid–Afrikaanse Reg 1999 (3), 495–507. Most recently see Magdalena Sitek, “Legal protection of the natural environment in... Roman Law,” in Maria Zablock et al. (edd.), Au–delà des frontières, Mélanges de droit romain offertes à Witold Wolodkiewicz II (Varsovie, Liber, 2000) 859–881. 1 Report on a world–wide conference held in Den Haag, Frankfurter Allgemeine Zeitung, 22. March 2000 Nr. 69, page 7. 2 BGB § 90a (1990): “Animals are not things. They are to be protected by special laws. Rules governing things are to be applied to animals accordingly, as far as there is not ordered anything else.” 3 Rightly criticized by Jauernig, Bürgerliches Gesetzbuch (9. ed. 1999) ad § 90a, with further literature. 2002 Environmental Protection? 3 be protected by special laws. However, laws for the protection of animals had already existed for decades — even without this purely declamatory phrase. “Animals are not things,” states § 90a BGB explicitly; nonetheless, “laws governing things [are] to be applied [to animals] accordingly.” And ownership of animals still exists as before (§ 903 sentence 2, new version);4 therefore, being objects of rights, they can never be carriers of rights nor subjects of duties. Furthermore, horses are very different from insects; bugs and microbes are harmful rather than useful. Taken in the whole, this is nothing more than bare symbolic legislation, which in substance orders nothing new. 2. The media report almost daily about natural catastrophes. Of course, such catastrophes already threatened human life during antiquity. The most spectacular was the eruption of the vulcano Vesuvius in 79 AD, which buried the cities Pompeii and Herculanum. As we know today, human interference was partly responsible for some of these catastrophies.5 In the second century BC, Italy and Sicily were still covered by large leafy forests. According to the report of Lucretius (94–55 BC), however, these forests were already in his day receding further up the mountains. Clearing forests to gain land for growing crops and raising livestock was one of the causes of deforestation. Another cause was felling trees to build houses and ships, as well as using wood for the hypocaust heating systems of houses and thermal baths. The Romans were once called “the Americans of Ancient times.” This comparison is fitting, due to the Romans’ excellent engineering technology — but also due to their generous wasting of energy. Deforestation of large areas caused erosion. Topsoil was washed away, thus swamps formed in the lowlands and at the mouths of rivers. The hills could no longer hold the rain water, which lead to floods. Some regions have been unable to recover from these clearances during the ensuing two thousand years. On the coasts of Dalmatia, for instance, which 4 BGB § 903 sentence 2 (1990): “The owner of an animal when exercising his rights has to observe the special rules protecting animals.” 5 Generally on problems of the environment in Antiquity: Karl– Wilhelm Weeber, Smog über Attica: Umweltverhalten im Altertum (Reinbek bei Hamburg 1993); At. P. Canellopoulos, Ecologia ed economia dell’ambiente nell’antica Grecia (Athens 1994, Ekoti Estia) 271 pp. [not consulted]. 4 Roman Legal Tradition Vol. 1 were reduced to bare rock, the vegetation (apart from a few bushes) has not regrown. 3. Environmental law is only to a small degree part of private law. The main instrument of environmental law is public law, namely building regulations, regulations on the use of land as well as the surveillance of industrial sites. On top of this, there is the environmental criminal law and then the so called eco– tax, as well as public international law and international conventions. Private law only protects the position of the individual. Out of this, a protection of the environment can only develop as an ancillary function, in so far as an injunction or the fear of having to pay damages can steer the behaviour of potential environmental sinners.6 A prerequisite for enforcing an action is that the plaintiff has an interest in doing so: “Pas d’interêt, pas d’action:" individuals not personally involved in the case normally have no cause of action. Roman law, of course, consists largely of private law. Following from this, not even proper contracts for the benefit of third parties were recognized, due to the lack of an individual interest. Even less so could the collective interest in the avoidance of environmental damage justify granting standing to an individual. On the other hand, Roman law had a wider range of actions that could be brought in the general interest of the people, the actiones populares, as well as the interdicts in the common interest, where quivis ex populo could intervene as speaker or solicitor for the realisation of common interests.7 4. It is possible to differentiate between rural and urban environment, similar to the way in which Roman lawyers differentiated between rural and urban servitudes (servitutes rusticorum praediorum et urbanorum: D. 8,1,1; D. 8,2,1 ff.; 8,3,1 ff.). The Romans cherished and enjoyed both city and country life. But only few from the upper classes could afford to 6 Medicus, “Zivilrecht und Umweltschutz,” Juristenzeitung 1986, 778ff.; Meyer–Abich, “Der Schutz der Natur: eine Aufgabe des Zivilrechts?" Zeitschrift für Rechtspolitik 1999, 428ff.; Chin–Woo Kim, Zivilrechtliche Umwelthaftung (Deutschland–Korea) (Frankfurt 2000). 7 Laura Gutiérrez–Masson, “Las acciones populares,” in: Javier Paricio (ed.), Derecho romano de obligaciones, Homenaje J.L. Murga (Madrid 1994) 739–752, with bibliography. 2002 Environmental Protection? 5 spend the winter in the city and to move to their villa in the country for the summer.